Paula A. Leal v. State

Leal v. SOT NUMBER 13-03-00591-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG PAULA ALCANTAR LEAL, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Court at Law Number One of Victoria County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Castillo Memorandum Opinion by Justice Hinojosa On June 2, 2000, appellant, Paula Alcantar Leal, pleaded guilty to the offense of theft by check in the amount of $20 or more, but less than $500. After accepting her plea and hearing evidence, the trial court: (1) found appellant guilty; (2) assessed her punishment at confinement in the Victoria County Jail for 180 days and a $100 fine; (3) suspended the jail sentence; and (4) placed her on community supervision for two years. As part of appellant’s community supervision, the trial court imposed the following conditions:• Pay the sum of $40.00 per month Supervision Fee, each and every month during the term of [appellant’s] community supervision, with payments beginning 07-03-00 through the Local Department having jurisdiction. • Pay restitution in the amount of $2,421.16 at $110.05 per month beginning 07-03-00 through the Local Department having jurisdiction. • Pay [the] fine of $100.00 at $4.55 per month beginning 07-03-00 through the Local Department having jurisdiction. • Pay Court Costs in the amount of $287.25 at $13.06 per month beginning 07-03-00 through the Local Department having jurisdiction. Later, the State filed a motion to revoke appellant’s community supervision. On April 30, 2002, the trial court signed an agreed order extending appellant’s community supervision. On December 12, 2002, the State again filed a motion to revoke appellant’s community supervision. The motion alleged appellant had violated the aforementioned conditions of her community supervision. Appellant pleaded “not true” to the allegations in the State’s motion. After hearing evidence, the trial court found the allegations to be true, revoked appellant’s community supervision, and sentenced appellant to 180 days in the Victoria County Jail. The trial court has certified that this case “is not a plea-bargain case and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4. In a single issue, appellant contends the trial court erred in revoking her community supervision because the ability to pay was not established by a preponderance of the evidence. Trial courts are vested with discretion to revoke an individual's community supervision. See Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.–Corpus Christi 1997, no pet.). At revocation hearings, the State bears the burden of proving by a preponderance of the evidence all alleged violations contained in its motion to revoke. Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.–Tyler 2002, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993)). The trial court is the sole judge in determining the credibility of the witnesses and determines whether the allegations in the motion to revoke are true. Martinez v. State, 6 S.W.3d 674, 680 (Tex. App.–Corpus Christi 1999, no pet.) (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)). When, as in this case, appellant raises the affirmative defense of inability to pay, it is the appellant’s burden to prove this defense by a preponderance of the evidence. See Stanfield v. State, 718 S.W.2d 734, 737 (Tex. Crim. App. 1986); Corpus v. State, 26 S.W.3d 660, 662 (Tex. App.–Corpus Christi 2000, no pet.). The burden then shifts to the State to prove that appellant's failure to pay was intentional. See Stanfield, 718 S.W.2d at 738; cf. Corpus, 26 S.W.3d at 662 (even if appellant did not raise affirmative defense of inability to pay, reviewing court must make inquiry into whether any failure to pay was intentional to satisfy due process requirements). We examine the record in the light most favorable to the trial court's ruling. Corpus, 26 S.W.3d at 662 (citing Jackson v. State, 645 S.W.2d 303, 304 (Tex. Crim. App. 1983)). Community Supervision Officer Janelle Nugent testified that appellant had made only four payments toward her fine, court costs, and restitution: (1) $111.62 on August 3, 2000; (2) $20 on December 29, 2000; (3) $200 on August 19, 2002; and (4) $600 on February 21, 2003. Nugent discussed the delinquent amounts with appellant on July 11, 2000, August 28, 2000, September 20, 2000, January 31, 2001, January 23, 2002, April 21, 2002, September 25, 2002, October 30, 2002, November 27, 2002, January 7, 2003, and March 31, 2003. Each time, appellant promised to pay and when she failed to pay, made various excuses including: (1) she forgot; (2) she gave the money to her daughter; and (3) she had to use the money to bond out of jail. Nugent said she had made several inquiries regarding appellant’s financial situation, but appellant never responded. The record shows appellant receives $572 per month in social security benefits. In addition, while on community supervision, appellant received checks in the following amounts: (1) $107; (2) $400; (3) $90; and (4) $474. The State produced evidence showing that during the time appellant was on community supervision, an account was opened in appellant’s name at First National Bank with an initial deposit of $4,034. The record shows that during the time appellant was on community supervision, at least six deposits, ranging from $50 to $1282.56, were made into that account. Appellant also wrote checks to numerous restaurants, Enterprise Rent-a-Car, Academy, ColorTyme, Gift Gallery, Debbie Bennet Green Dance Studio, and Hi-Pro during that time period. Also, several checks were written in the cities of San Antonio, El Campo, and Katy. Appellant testified that some of the checks were written by her daughter; however, she gave her daughter permission to do so. Some of the checks were loans to her daughter, but her daughter repaid the loans. Appellant lives with her daughter, her daughter’s boyfriend, and her grandchildren. She pays $363 per month for rent, plus bills. Considering the evidence that appellant received social security benefits, was able to post a $1,000 bond to get out of jail, and given her failure to produce any evidence documenting her living expenses, we conclude the trial court did not abuse its discretion in determining that appellant failed to establish inability to pay fees, costs, and restitution by a preponderance of the evidence. Moreover, because the evidence showed appellant had the ability to pay, but chose to spend her money elsewhere, we hold the State established that appellant’s failure to pay was intentional. Appellant’s sole issue is overruled. We affirm the trial court’s order revoking community supervision. FEDERICO G. HINOJOSA Justice Do not publish. See Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 12th day of August, 2004.